Victory! Court Rules The Campus SAvE Act Has No Effect On Title IX

Earlier today, in two long-awaited companion court rulings, a federal judge in the District of Columbia ruled that Title IX’s civil rights standards for addressing sexual assault on campus were not weakened by the 2013 Campus SaVE Act.

With this decision, colleges and universities—many of which are already under investigation by the Department of Education’s Office for Civil Rights—cannot rely on Congress’ language in the Campus SaVE Act to deviate from Title IX’s longstanding requirement that schools apply “prompt and equitable” policies and procedures to ensure the effective redress of violence against women. “Equitable” means that gender–based violence must be treated exactly the same as violence based on any other protected category such as race and national origin.

When it was first introduced in 2011, congressional sponsors told advocates that the SaVE Act was intended to codify a “Dear Colleague” letter that was issued by the Department of Education and announced by Vice President Joe Biden only days earlier. That letter emphasized that “equitable” redress for women is mandatory under Title IX.

But the language in the SaVE Act was soon changed, and the word “equitable” was removed, which—in conjunction with other changes—enabled schools to apply worse legal standards in matters involving violence against women compared to violence that occurs on the basis of other protected class categories such as race and national origin.

Advocates feared the language in SaVE would effectively overturn Title IX’s longstanding mandate requiring schools to adopt “prompt and equitable” policies and procedures to ensure the effective redress of violence against women on campus.

In its enacted form, SaVE dangerously removed a requirement that schools apply a “preponderance of the evidence” standard when assessing evidence in situations involving violence against women. This standard had been mandatory under Title IX.

Even more troubling was SaVE’s mandate that schools apply criminal law definitions when determining whether a victim’s federal civil rights were violated, thus subjecting the redress of violence against women to inherently unfair and more onerous legal standards compared to violence that occurs on the basis of other protected class categories such as race, religion, and national origin.

Civil rights laws require only that an incident be “unwelcome and offensive.” This is much easier to prove than criminal law definitions such as “non–consent” and “force.” Under the SaVE Act, only violence against women was subjected to more onerous criminal definitions and stricter burdens of proof.

In its enacted form, SaVE effectively overturned Title IX’s “prompt and equitable” mandate. The lawsuit which led to today’s court ruling was filed to prevent SaVE from being applied on any campus in response to gender–based violence. While some minor misconduct may not rise to the level of a Title IX violation, all sexual assault and physical violence when it occurs “on the basis of sex” is always covered by Title IX.

After the SaVE Act became law, many schools changed their policies to adopt a more onerous burden of proof so that the word of a credible woman was not good enough to merit a finding in her favor. In a sense, the SaVE Act gave schools permission to tell a rape victim they believed her, but not enough to do anything about it.

Although many schools amended their polices to make Title IX weaker after the SaVE Act became law in 2013, some (such as Harvard) changed them back after this lawsuit was filed. Today’s ruling reveals that Harvard was right to reject the SaVE Act because the federal court made clear that SaVE can have “no effect” on Title IX.

This lawsuit forced all schools to adopt the preponderance of evidence standard which properly values the word of a woman as equal to that of all other students on campus.

In today’s decision, the Court conclusively rejected any interpretation of the SaVE Act which undermines Title IX’s well–established standards. Quite simply, the Court found that the 2013 [Campus SaVE Act] amendments to portions of the Clery Act…can have “no effect on Title IX.”

Title IX standards—and only those standards—must be applied in response to campus sexual assault and other forms of gender–based violence such as domestic abuse and stalking against both men and women.

As a practical matter, this is a “great ruling,” said Attorney Wendy Murphy who filed the groundbreaking civil rights action with Dr. Bernice Sandler over a year ago to protect Title IX.

“We filed this lawsuit because many schools were using the Campus SaVE Act to weaken Title IX’s ‘prompt and equitable’ standards. For example, some schools were telling students they were not entitled to ‘promptness’ in the ‘final determination’ of their cases because it was not required under the SaVE Act even though it is mandatory under Title IX. Other colleges were applying a burden of proof more onerous than ‘preponderance of the evidence,’ and many were defining violations under criminal law standards rather than Title IX’s long–established civil rights definition which requires proof only that an offense was ‘unwelcome and offensive.’”

Murphy noted, “It‘s sad that in the year 2014 we had to resort to a lawsuit to force schools not to subjugate women, but because Congress passed such an offensive bill, our lawsuit was essential. Most importantly, our client will now have her complaints against the University of Virginia (which are pending with the Office for Civil Rights at the Departments of Education and Health and Human Services) resolved under Title IX’s fully equitable legal standards. If her complaints was reviewed under the SaVE Act—which is what UVA was hoping for—UVA’s abominable mistreatment of Jane Doe would have been permissible.”

“This important ruling,” Murphy added, “puts schools on notice that they cannot deviate from Title IX’s longstanding civil rights standards and burdens of proof in response to violence against women on campus.”

Noting that the lawsuit was critically important in preventing the SaVE Act from weakening Title IX, Murphy explained that today’s ruling “makes violence against women on campus much easier to prove than it was under the SaVE Act. Today’s decision will greatly enhance women’s equality and safety in higher education. More than forty–five years after Title IX’s enactment, it’s about time.”

Murphy concluded, “The battle to protect Title IX must continue if we want to ensure that this generation of women, and their children and grandchildren, can enjoy full equality in education and all the civil rights and protections from gender–based harassment and violence that were guaranteed to women in 1972.”

Murphy’s co-counsel, James R. Marsh, agreed. “This ruling sends a clear message that a college or university cannot rely on the SaVE Act to weaken or diminish the rights of victims of sexual violence or sexual harassment. Victims are entitled to all the protections afforded by Title IX and nothing less is acceptable.”

Noting that he and Murphy are frequently contacted by students from across the country, Marsh added, “we are aware that a few schools continue to tell victims that promptness and equity are no longer required under Title IX because of the SaVE Act. Those schools should read today’s decision carefully and follow its mandate: the Campus SaVE Act’s weaker legal standards cannot be used in the redress of violence against women on campus because the court ruled that SaVE cannot and does not mitigate or diminish Title IX.”

Murphy and Marsh concluded, “We are grateful for the Court’s decision and we hope and expect that all schools will heed today’s unequivocal message that the Campus SaVE Act does not allow women to be treated as second class citizens on campus, especially when they endure the most severe expression of sex discrimination—gender–based violence. We are prepared to file as many lawsuits as it takes to make sure Title IX standards—and only Title IX standards—are applied on every campus.”

For more information about our client, the lawsuit, and today’s court ruling, visit Title9.us and CampusAccountability.org.


Today’s Decision

Doe-v.-DOE-Memorandum-Opinion
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James R. Marsh
A University of Michigan Law School graduate, James represents victims of campus sexual assault and rape; Title IX violations; sex abuse in schools, colleges, churches, and government and military institutions; online sexual exploitation; child pornography; sextortion, and revenge porn. His case on compensation for victims of child pornography in federal criminal restitution proceedings was recently decided by the United States Supreme Court. That case, United States v. Paroline, led to the Amy and Vicky Child Pornography Victim Restitution Improvement Act currently pending in the House and Senate. James founded the nationally recognized Children's Law Center in Washington, DC, and is an experienced trial attorney, and frequent commentator, lecturer, and Huffington Post Blogger. He now leads Marsh Law Firm in New York which is recognized worldwide for its work helping sexually abused survivors obtain justice and rebuild their lives with dignity and respect.

1 Comment

  • Mark April 19, 2015 (11:13 pm)

    mandatory title ix is the bane of almost every person in college right now. i hope you realize you have pissed off virtually every single college student that is now required to sit through your bullshit videos about feminist propaganda before being allowed to enroll in classes. i hope you know that myself and many others are going to spend the rest of our young careers trying to get rid of this bullshit excuse for a sexual harassment training program. it’s thing like these that are ruining the education system in this country.

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